Jenkins v Police - [2018] NZHC 2055

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-102

[2018] NZHC 2055

BETWEEN
TYRONE LEE JENKINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 August 2018

Appearances:

E I Haronga for Appellant C Juneja for Respondent

Judgment:

13 August 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 13 August 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

JENKINS v POLICE [2018] NZHC 2055 [13 August 2018]

Introduction

[1] Tyrone Jenkins pleaded guilty to two charges of driving whilst disqualified (third or subsequent)1 and one of failing to answer District Court bail.2 On 6 April 2018, he was sentenced to two years and five months’ imprisonment in the District Court.3 He now appeals against that sentence.

The offending

[2] On 31 May 2017, at around 10.20 am, the police observed Mr Jenkins in the driver’s seat of a stationary vehicle parked on the roadside on Waiheke Island. The car keys were in the ignition and he admitted to the police that he had been driving. Mr Jenkins explained that the toilet where he lived was not working and he had driven to use the local public toilet. On appeal, his partner has affirmed an affidavit supporting his explanation. She says the house where they were living with their children is “run down” and the toilet had been out of operation for more than a week. She further says that at the time Mr Jenkins drove to the public toilet, she was busy taking the children to school. She attaches a letter from a certifying plumber confirming that he was contacted and requested to clear a blocked toilet at the address and had attended to repair it on 1 June 2017.

[3] Mr Jenkins first appeared in the Auckland District Court on 6 June 2017 charged with driving while disqualified having been convicted at least twice previously. He was subsequently released on bail on 22 June 2017. Pursuant to the conditions of bail, he was required to appear at the Auckland District Court on 18 September 2017. He failed to do so.

[4] On 22 September 2017, at around 8.35 pm, Mr Jenkins who was still a disqualified driver, was stopped by the police while driving on State Highway One near Wellsford. His partner was with him in the car. He had been driving at a speed of 107 kilometres per hour (kph) in an area where the limit was 80 kph. Mr Jenkins

1      Land Transport Act 1998, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000; mandatory disqualification from driving for one year (or more).
2      Bail Act 2000, s 38(a); maximum penalty one year’s imprisonment or a fine not exceeding $2,000.
3      Police v Jenkins [2018] NZDC 11658.

immediately volunteered to the police that he was a disqualified driver. He explained to the police that he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2055
Decision Date: 13 August 2018

CaseChat Overview and Summary

In Jenkins v Police, the appellant, Tyrone Jenkins, appealed the sentence imposed by the District Court for driving while disqualified and failing to answer bail. The court was required to determine whether the sentence was manifestly excessive and, if so, what sentence should be imposed instead. The court considered the nature of the offences, Jenkins' history of driving while disqualified, and the reasons he provided for driving on the occasions in question. The court found that the starting points adopted by the District Court were too high and that the end sentence was manifestly excessive. The court imposed a sentence of one year imprisonment on each of the driving while disqualified charges to be served concurrently and maintained the sentence for the breach of bail charge.

The court allowed the appeal and quashed the original sentence. It imposed a sentence of one year imprisonment on each of the driving while disqualified charges to be served concurrently and maintained the sentence for the breach of bail charge. The disqualification periods imposed by the District Court were to remain in place. The court found that the end sentence imposed by the District Court was manifestly excessive and that a sentence of one year imprisonment was appropriate in light of the purposes and principles of sentencing. The court also noted that Jenkins had breached home detention five times in the past and had not expressed remorse or displayed any insight into his offending. The court considered a sentence of imprisonment necessary to promote a sense of responsibility in Jenkins and to hold him accountable for his offending.

Orders